BUREAU OF WASTE PREVENTION

DIVISION OF CONSUMER AND TRANSPORTATION PROGRAMS

Summary of Comments and Response to Comments

on the Proposed Amendments to the Regulation and

State Implementation Plan for Ozone

310 CMR 60.02:

Regulations for the Enhanced Motor Vehicle 

Inspection and Maintenance Program (IM)

Regulatory Authority:  Massachusetts General Laws, Chapter 111,

Sections 142A through 142M

September 2008

SUMMARY OF AND RESPONSE TO COMMENTS ON 310 CMR 60.02: REGULATIONS FOR
THE ENHANCED MOTOR VEHICLE INSPECTION AND MAINTENANCE PROGRAM (IM)

The Massachusetts Department of Environmental Protection (MassDEP)
proposed amendments to 310 CMR 60.02, Regulations for the Enhanced Motor
Vehicle Inspection and Maintenance Program (IM)), and, in accordance
with the public review process requirements of M.G.L. Chapter 30A, made
the proposed amendments available for public review, published
notification of the amendments, and held public hearings on March 13,
2008 in Boston, Massachusetts and March 18, 2008 in Springfield
Massachusetts to solicit public comment on the proposed regulation.  The
public comment period ended March 28, 2008 and relevant comments have
been summarized and organized into groupings for response.  A list of
all commenters on the proposed amendments is included in Attachment A.

Technical Analysis/Modeling

Comment:  Under Section 60.02(3)(c), the Commonwealth intends to exempt
vehicles which are older than 15 years from OBD2 testing.  In evaluating
the effectiveness of the new program for the purpose of meeting the
Environmental Protection Agency’s (EPA) performance standard, and for
the purpose of demonstrating the effectiveness of the new program
relative to the existing SIP-approved inspection program, this 15 year
rolling exemption should be considered in MOBILE modeling.  Please
include the MOBILE input and output streams which support the tables in
the Background Document with show the level of emission reductions
achieved by this program. 

Response:  Included as an attachment to the SIP revision submitted to
EPA are MOBILE input and output streams as well as post processing data.
 The MOBILE analysis evaluates all program features, including the
15-year rolling exemption, and the results of the analysis are included
in the Background Document.  The results demonstrate that the revised
program is at least as effective as the current program with the
exception of the first year.  Supporting documentation such as the model
input and output files and the post-processing analysis files are beyond
the Background Document’s scope.  

OBD2 Vehicles

Comment:  In Section 60.02(3)(c)9, the Commonwealth is proposing to
broadly exempt vehicles which present “prohibitive emissions
inspection problems.” This section should be clarified to ensure that
OBD2 equipped vehicles are not inappropriately exempted from testing
under this very broad provision.  If vehicles will be tested in a manner
different than provided under EPA rules and policies, EPA should have a
role in reviewing any vehicles that are exempted, or treated differently
than EPA guidance prescribes.

Response:   This section is a continuation of the provision in the
Massachusetts I&M Regulations currently approved by EPA that allows the
Commonwealth to respond quickly to previously undiscovered or unresolved
vehicle performance issues that affect emissions testing.  (This is an
essential element for I&M programs where problems with vehicles are
discovered and must be addressed, and EPA has not issued a recall or
provides other relief, or the manufacturer has not had an opportunity to
fully effect corrections).  The Department will continue to consult with
EPA regarding vehicles that pose emissions testing problems, take
appropriate interim action to preserve motorist convenience necessary
for continued public acceptance of the I&M program, and adjust
corrective actions, where appropriate, in response to EPA
recommendations or actions.  

This flexibility may be needed because the Commonwealth has committed to
begin OBD testing of MY2010 and newer OBD-equipped heavy-duty vehicles. 
These vehicles are not currently equipped with OBD systems, and it may
be necessary to revise program requirements for these vehicles should
implementation issues arise.  

Comment:  Section 60.02(7)(c)3 allows for alternative tests. 
Alternative tests should not be allowed for OBD2 equipped vehicles
unless EPA and the Department agree that an alternative test is
appropriate.

Response:  The alternative test provision was intended to provide
flexibility to address implementation issues associated with the start
of OBD testing.  For example, this allowed the Department to use an
alternative test for OBD-equipped vehicles using the CAN communication
protocol, which our test equipment was not originally able to test.  It
was not until the OBD test equipment was upgraded to CAN compatibility
that we could test these vehicles.  This provision is in the existing
regulation, and is not applicable post-October 1, 2008.  

Comment:  In Section 60.02(9), the Commonwealth is proposing that there
be an advisory scan of new motor vehicles when vehicles are initially
purchased in the Commonwealth to identify if there are any OBD2 related
problems.  EPA is interested in reviewing any criteria used to determine
if a problem exists.

Response:    The advisory scan for new motor vehicles will provide the
Department with an electronic signature of the vehicle to compare 
during future OBD tests for fraud detection.  The Department will also
be able to evaluate whether there are any fundamental problems with the
vehicle that may cause a problem when the vehicle is first tested.  

The scan will evaluate three criteria:  (1) whether the OBD VIN and the
vehicle VIN match; (2) whether the OBD system communicates with the OBD
test system; and (3) whether all monitors are reported as unsupported. 
Early identification of any problems is intended to give the dealer and
the motorist up to a year to have them corrected so the vehicle may pass
when presented for its first test, instead of the usual 60 days
following a failing test.  MassDEP may propose additional criteria if
appropriate and will advise EPA if any additional criteria are proposed.




Comment:  In Section 60.02(12)(b)3, a vehicle should fail the I/M OBD2
test explicitly if the malfunction indicator light (MIL) does not
illuminate when the vehicle is in the “key on, engine off” (KOEO)
position as a means to ensure the bulb itself operates.  This is in
addition to the criteria listed in Section 60.02(11)(b)3 for failing
when the MIL light does not illuminate when commanded on by the OBD2
system.

Response:  As indicated in the Technical Support Document, Massachusetts
is not proposing to perform a KOEO bulb check for all vehicles as part
of the OBD test procedure because: 

The KOEO bulb check failure rate is low in other states; 

Vehicles with disabled MILs are likely to be vehicles that fail the
electronic scan of the OBD system; 

Vehicles failing the electronic scan of the OBD system because the MIL
is commanded on will receive a bulb check; 

The bulb check is becoming increasingly prone to false failures because
of changes in vehicles themselves; and 

The high false failure rate found during pilot OBD testing in
Massachusetts raises concerns about costs to motorists in terms of time
and money.

Comment: Section 60.02(12)(b)4 is confusing.  In particular, please
clarify the latter portion of this failure criteria.

Response:  Massachusetts is proposing OBD testing of all OBD-equipped
vehicles, yet EPA’s OBD regulation applies only to Light Duty
non-diesel vehicles (gross light duty vehicle weight of less than or
equal to 8,500 pounds).  As a result, it is necessary for MassDEP to
establish readiness criteria for vehicles not covered by 40 CFR 85.2222,
including light duty diesel vehicles, medium duty vehicles, and heavy
duty vehicles as OBD requirements become applicable to these vehicles. 
This flexibility is also necessary particularly in light of the
uncertainties associated with requiring OBD testing of heavy duty
vehicles because these vehicles are not yet equipped with OBD systems.  

The reference to reinspections is necessary to clarify that vehicles
failing to meet readiness upon reinspection will not fail the
reinspection.  Instead, these vehicles are turned away from reinspection
as a consumer protection measure, preserving their free retest.  Also,
Massachusetts will be requiring that vehicles failing their initial OBD
test with catalytic converter efficiency codes have run the catalytic
converter monitor prior to reinspection.  Because this requirement is
beyond what is required by EPA, providing a reference to only 40 CFR
85.2222 is inadequate.  

Comment:  Section 60.02(14)(b) states that the vehicle will be turned
away from a reinspection if insufficient readiness codes are set.  This
section should reference EPA readiness criteria. 

Response: MassDEP has modified the regulation to reflect this
suggestion. 

Diesel Testing

Comment:  Regarding “opening up” lightweight diesel testing to
regular stations; will it be possible in the new program to conduct
diesel testing in an outside canopied area as it is not appropriate [for
indoor air quality at the station] to diesel testing inside? 

 

Response:  The testing of OBD-equipped light duty and medium duty diesel
vehicles requires they be running for only a brief period during the OBD
test.  The vehicle’s exhaust may be connected to exhaust ventilation
systems without affecting test outcome.  Because vehicles need to be
inside a RMV approved bay for the Safety portion of the test, and
because the emissions portion of the test will be a minimal amount of
engine running time, the entire test will be conducted indoors.  

Comment:  The data from the northeast states study indicates that less
than 1% of the vehicles are failing the [diesel] opacity test.  That
coupled with the fact that we are allowing fleets to do their own
tailpipe testing seems to be an argument against continuing that test. 
As attrition takes place with these trucks, and they age and are
replaced, the old mechanical diesel injected trucks are going to be
replaced by the electronic trucks which typically don’t fail and
cannot be “hopped up” easily to make them smoky.  Considering the
kind of effort that some inspectors put into the test to get the
specific engine data that is required to then be able to conduct the
test, is very time consuming.  

Response:  A 1% failure rate is indicative that vehicles are being
maintained and the Commonwealth’s program is working.  Regarding the
amount of effort and time consumed to conduct a diesel opacity test,
there will be a considerable amount of information that will be
prepopulated into future opacity tests on a vehicle after its initial
test following October 1, 2008.  This information will be called up
based on the previous sticker or previous test result.  This will
minimize inspector data entry time and errors and require only quick
confirmation that the vehicle information is correct before the
inspector begins the test.

Comment: Technology is being explored to incorporate snap verification
to make sure that the probe is in the tailpipe and the engine is being
raised to the correct speed, (which possibly is not being done anywhere
else in the country).  Should that procedure become problematic for the
inspectors, we may be back to the old days, of working for half an hour
but ending with an incomplete inspection and not being able to collect
the fee.  Is it possible to make sure the software is setup so that if
the inspector is unable to do the test properly because of the snap
verification issue, that there is a bypass system included in there, so
the inspector can bypass that part of the test?

 

Response: If there is a problem with the testing equipment, a service
ticket should be opened so that the snap verification equipment can be
repaired.  In the new program, the contractor is required to have the
equipment repaired and back in service within one business day after a
ticket is opened. 

Waivers 

Comment:  Minimum waiver expenditures under Section 60.02(17)(c)8 are
[lower and] not consistent with the Clean Air Act requirements at
section 182(c)(3)(C)(iii) or EPA regulations at 40 CFR 51.360.

Response:  The Massachusetts SIP commits to a waiver rate not to exceed
1% of failing vehicles.  In 2005 and 2006, approximately 2.9 million
initial OBD emissions tests were administered and approximately 9.2%
(272,000) vehicles failed.  The Agencies issued 210 waivers to OBD
vehicles that failed their initial inspection in 2005 and 2006 (less
than 0.1% of vehicles failing an initial OBD test).  This waiver rate
was achieved using a three-tiered waiver cost threshold substantially
less than required by EPA regulations.  

The proposed increases to the three tiers will be updated annually to
reflect changes in the consumer price index since 1989.  Revised waiver
provisions will also be more stringent than EPA requirements because
commercial vehicles will no longer be eligible for waivers.  Also,
waivers will not be permitted for vehicles with certain high-emitting
characteristics:  catalytic converter efficiency codes, misfire codes,
and codes for malfunctioning energy storage systems in hybrid vehicles. 
The prohibition on waivers for certain high-emitting characteristics is
designed to be equivalent to the current provision on waivers for gross
emitting vehicles: those with tailpipe emissions more than three times
the cut point.  

Given the waiver rate commitment, the substantial increase in wavier
cost thresholds, the annual CPI adjustment to waiver cost thresholds,
the prohibition on waivers for commercial vehicles, and the prohibition
on waivers for vehicles with certain high-emitting characteristics, the
proposed waiver provisions are at least as effective as EPA’s
requirements.  

Comment:  The issuance of the economic hardship failure extension should
be clarified in two areas.  First it should be made clear that each
vehicle is only eligible once, regardless of who owns the vehicle for
the subsequent test.  Second the definition or criteria for the economic
hardship waiver is included in 60.02(2), but now references sections
that do not seem relevant.   It is recommended that the criteria of
expenditure estimates of 1.5 times the waiver limit be explicitly
included in the relevant section, which is now 60.02(19).  Also the
Commonwealth may wish to consider some sort of demonstrated economic
need on the part of the vehicle owner, before allowing a “hardship”
repair time extension.

Response:  The prohibition on issuance of successive extensions, and the
issuance of a waiver following an extension is stated in 60.02(19)(e). 
Also, the criteria to be met for issuance of an extension included in
60.02(19)(d)9. prohibit issuance of an extension following a change of
ownership or for vehicles initially registered in the Commonwealth.  The
section incorrectly referenced in the draft regulation has been
corrected to refer to 1.5 times the waiver repair expenditure limit
applicable effective October 1, 2008, as specified in
60.02(17)(c)8.(a), (b), or (c).  The Department considered an
owner-specific based approach to granting extensions and has determined
that it would be administratively burdensome.  Since older vehicles are
more likely to experience the types of qualifying catastrophic failures,
and these vehicles would more likely be owned by motorists of limited
means, the proposed approach provided the most easily implementable
solution.  

Enforcement 

Comment: EPA would like the most effective enforcement of the emissions
testing program as possible, and to ensure vehicles that fail the
emissions test get repaired there should be more than just a sticker on
them that says “failed,” EPA would like to see that the vehicle’s
registration gets suspended.  

Response:  The Registry of Motor Vehicles will implement an effective
form of enforcement of the emissions inspection program. After
evaluating the effectiveness of a registration non renewal program,
which is referenced in EPA regulations as an enforcement tool, and the
effectiveness of a registration suspension program, the Registry of
Motor Vehicles has made a decision to implement a registration
suspension program.  

In general, the registration suspension enforcement program will work as
follows: An "Inspection Required" event will be noted in ALARS for a
vehicle. Following that event, including ownership changes or new
registrations, a failure to pass inspection, or an inspection sticker
expires, all of which trigger a need for an inspection or a
reinspection, an "Enforcement Event" will be created in ALARS. Thirty
days after the "Enforcement Event," a "Warning Letter" will be issued
notifying the registered owner that a suspension will be imposed on the
non-compliant vehicle unless compliance with the emissions inspection
requirements are obtained. Thirty days after the "Warning Letter" is
issued, the registration suspension will be imposed. The registration
suspension can only be removed after compliance with the inspection
requirements and payment of a reinstatement fee. 

The only variance from the suspension enforcement program will occur if
it is determined that an unreasonable number of registered vehicles are
being misidentified as requiring an inspection, when in fact the
vehicle has met the inspection requirements. In that case, in order not
to unreasonably and without cause suspend the registrations of compliant
vehicles, the registrar reserves the right to place the enforcement
program in suspension until the problem causing the misidentified
vehicles has been identified and corrected.  

Attachment A: List of all commenters on the proposed amendments

Fred Bevins, The Car Shop, Incorporated, 27 Maplewood Avenue,
Gloucester, MA 01930  (978) 283-9032

David Conroy, Manager, Air Programs Branch, United States Environmental
Protection Agency, Region I, 1 Congress Street, Suite 1100, Boston, MA 
02114-2023

Sal Dampolo, Sal’s Auto 299 Boston Rd., North Billerica, MA 01862 
(978) 667-6000

David B. Conroy, Manager, Air Programs Branch, USEPA, Region I, 1
Congress Street, Suite 1100, Boston, MA  02114-2023  (888) 372-7341 

Robert Judge, Air Programs Branch, United States Environmental
Protection Agency, Region I, 1 Congress Street, Suite 1100, Boston, MA 
02114-2023  (617) 918.1045

Rusty Savignac, President of NESSARA, Paxton Garage, 593 Pleasant
Street, Paxton, MA  01612  (508) 756-0500

 PAGE   

 PAGE   8 

	Page   PAGE  8 	  DATE  5/1/2009 

	COMMONWEALTH OF MASSACHUSETTS

EXECUTIVE OFFICE OF ENERGY & ENVIRONMENTAL AFFAIRS

DEPARTMENT OF ENVIRONMENTAL PROTECTION

ONE WINTER STREET, BOSTON, MA 02108  617-292-5500



DEVAL L. PATRICK

Governor

TIMOTHY P. MURRAY

Lieutenant Governor

	

IAN A. BOWLES

Secretary

LAURIE BURT

Commissioner



This information is available in alternate format. Call Donald M. Gomes,
ADA Coordinator at 617-556-1057. TDD# 1-866-539-7622 or 1-617-574-6868. 

  Printed on Recycled Paper



(12)	Emissions Inspection Standards effective beginning October 1, 2008.
 A motor vehicle shall fail the emissions inspection if it does not meet
the applicable standards established in 310 CMR 60.02(12).  

(b)	On-Board Diagnostics Test.  A vehicle shall fail the on-board
diagnostics test if:  

4.   - the vehicle’s OBD system reveals insufficient readiness codes,
for light-duty nondiesel vehicles as prescribed in 40 CFR 85.2222 or as
otherwise determined by the Department in consultation with the U.S.
Environmental Protection Agency, and as determined by the Department for
all other vehicles, are set for the components of the OBD system except
as provided for reinspections at 310 CMR 60.02(14)(b);

